Filed 8/3/26 P. v. Johnson CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085437
Plaintiff and Respondent,
v. (Super. Ct. No. SCN437175)
JEFFREY R. JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Daniel F. Link, Judge. Affirmed with directions.
Charles Thomas Anderson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, A. Natasha
Cortina and Liz Olukoya, Deputy Attorneys General, for Plaintiff and
Respondent.
Jeffrey R. Johnson brandished a corkscrew and told Timothy Cross,
“Call my mom or I’m going to gouge your eyes out.” A jury convicted Johnson
of making a criminal threat. The trial court sentenced him to three years in
prison, which was less than his presentence custody time. Johnson was
accordingly released on parole.
On appeal, Johnson contends the trial court erred by failing to instruct
the jury on the lesser included offense of an attempted criminal threat. He
argues the instruction was warranted by evidence that Cross’s fear was not
sustained. He also claims the court erred by failing to apply his presentence
custody credit to his parole period. For reasons we explain, we affirm the
judgment with directions for the court to modify the abstract of judgment,
noting that Johnson’s excess credits must be applied to his parole period.
FACTUAL AND PROCEDURAL BACKGROUND
For a week in August 2022, Cross noticed Johnson “prowling around
the neighborhood” and “talking loudly to himself” or an imaginary person.
The morning of August 20th, Cross spotted Johnson in the Vista Village
shopping plaza. Cross, who uses a wheelchair, “sequestered” himself near
a dumpster enclosure, hoping to avoid Johnson. But Johnson “appeared
around that trash enclosure abruptly and scared the heck out of” Cross.
Johnson asked Cross to call his mother for him. Cross said no and Johnson
walked away.
About a minute later, Johnson returned. He had a wine opener in his
closed fist, with the corkscrew tool poking through his fingers. He held the
corkscrew about 6 to 12 inches from Cross’s face. Johnson said, “Call my
mom or I’m going to gouge your eyes out.” Cross felt “defenseless in a
wheelchair,” “quite frightened,” and “worried.” He called 911 right away.
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Johnson continued aiming the corkscrew at Cross’s face—for about 10 or
15 seconds—until Cross indicated he had called the police, at which point
Johnson fled.
In the 911 call, which lasted more than seven minutes, Cross reported
that Johnson “came up to [him] and threatened [him]” with a wine opener.
Johnson “got right in [his] face” and “said he was gonna gouge [his] eyes out.”
Cross told the operator he was “afraid” that Johnson was going to hurt him
or somebody else. Once Cross knew the police officers were on the way, he
“move[d] around front” of the shopping plaza to determine whether he could
see Johnson, reiterating, “Because if I can still see him, ... I’m afraid he’s
gonna hurt me or somebody, because he got right in my face ... with a
[corkscrew].”
At trial, Cross maintained he was afraid because he was in a
wheelchair and therefore limited in his ability to protect himself. He was in
fear from the time Johnson brandished the corkscrew until he left his sight—
roughly 20 seconds—and even then he was worried that Johnson would come
back. His fear and worry only subsided once the police officers arrived.
The prosecution charged Johnson with making a criminal threat
(Pen. Code,1 § 422) and attempted robbery (§§ 664/211). As to both counts,
it was alleged he personally used a deadly and dangerous weapon (corkscrew)
(§ 12022, subd. (b)(1)). During trial, the court granted Johnson’s motion
for judgment of acquittal on the attempted robbery count. (See § 1118.1.)
1 Further undesignated statutory references are to the Penal Code.
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The jury convicted him of making a criminal threat and found the deadly
weapon allegation true.2
The court sentenced Johnson to two years in prison for the criminal
threat plus one year for the weapon enhancement. It granted him 1,621 days
of presentence custody credits—811 days of actual credit and 810 days of
conduct credit under section 4019. Because Johnson’s custody credits
exceeded the term imposed, he was released on parole at sentencing.
DISCUSSION
A. Instructional Error
Johnson did not ask the trial court to instruct the jury on the lesser
included offense of an attempted criminal threat. He nevertheless contends
the court had a sua sponte duty to instruct the jury on the lesser offense
based on evidence that Cross’s fear was not sustained.
“In order to prove a violation of section 422, the prosecution must
establish all of the following: (1) that the defendant ‘willfully threaten[ed] to
commit a crime which will result in death or great bodily injury to another
person,’ (2) that the defendant made the threat ‘with the specific intent that
the statement ... is to be taken as a threat, even if there is no intent of
actually carrying it out,’ (3) that the threat—which may be ‘made verbally,
in writing, or by means of an electronic communication device’—was ‘on its
face and under the circumstances in which it [was] made, ... so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened,
2 In a consolidated information, the prosecution charged Johnson with
two other offenses committed against a different victim around the same
time—namely, battery with serious bodily injury (§ 243, subd. (d)) and
assault by mean likely to produce great bodily injury (§ 245, subd. (a)(4)).
The jury could not reach a verdict on these counts and the court dismissed
them on the prosecution’s motion.
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a gravity of purpose and an immediate prospect of execution of the threat,’
(4) that the threat actually caused the person threatened ‘to be in sustained
fear for his or her own safety or for his or her immediate family’s safety,’
and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the
circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227–228 (Toledo).)
As to the fourth element, “[c]ase law defines ‘sustained fear’ as ‘a period of
time that extends beyond what is momentary, fleeting, or transitory.’ ”
(People v. Brugman (2021) 62 Cal.App.5th 608, 634 (Brugman).) Fear may
be sustained even if it exists only during the incident itself. (Ibid.; see, e.g.,
People v. Fierro (2010) 180 Cal.App.4th 1342, 1349 [“the minute during
which [victim] heard the threat and saw appellant’s weapon qualifies as
‘sustained’ ”].)
An attempted criminal threat is a lesser included offense of making a
criminal threat. (Toledo, supra, 26 Cal.4th at p. 230; In re Sylvester C. (2006)
137 Cal.App.4th 601, 607.) This inchoate offense can be committed in a
variety of ways. (Toledo, at p. 231.) For instance, “if a defendant, again
acting with the requisite intent, makes a sufficient threat that is received
and understood by the threatened person, but, for whatever reason, the
threat does not actually cause the threatened person to be in sustained fear
for his or her safety even though, under the circumstances, that person
reasonably could have been placed in such fear, the defendant properly may
be found to have committed the offense of attempted criminal threat.” (Ibid.)
“A trial court has a sua sponte duty to ‘instruct on a lesser offense
necessarily included in the charged offense if there is substantial evidence
the defendant is guilty only of the lesser.’ Substantial evidence in this
context is evidence from which a reasonable jury could conclude that the
defendant committed the lesser, but not the greater, offense. ‘The rule’s
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purpose is ... to assure, in the interest of justice, the most accurate possible
verdict encompassed by the charge and supported by the evidence.’ ” (People
v. Shockley (2013) 58 Cal.4th 400, 403, citations omitted.) “In considering
whether the trial court had a sua sponte duty to instruct the jury on lesser
included offenses, we construe the evidence in the light most favorable to the
appellant.” (People v. Smith (2021) 70 Cal.App.5th 298, 308.)
Johnson highlights three areas of Cross’s testimony as constituting
substantial evidence that Cross’s fear was momentary, fleeting, or transitory.
Viewed in context, however, the only reasonable interpretation of this
evidence is that Cross’s fear was sustained. First, Johnson points to evidence
that Cross’s fear only lasted 20 seconds. As we have noted, however, fear
may be considered sustained even if it exists only during the incident itself.
(Brugman, supra, 62 Cal.App.5th at p. 634.) Here, Cross unambiguously
testified that he was “frightened,” “afraid,” and “worried” from the moment
Johnson brandished the corkscrew at least until Johnson left his sight and
arguably longer. Although Cross characterized his subsequent emotion as
“worried,” he was worried that Johnson would return. The only reasonable
inference to be drawn from that testimony is that he remained afraid of
Johnson. Indeed, toward the end of the seven-minute 911 call, Cross peeked
around the corner to see whether Johnson was still in the area, reiterating,
“Because, if I can still see him, ... I’m afraid he’s gonna hurt me or somebody,
because he got right in my face with a – with a [corkscrew].” Cross only felt
safe and worry free once the police arrived a few minutes after that. This
unequivocally demonstrates that Cross’s fear—lasting well beyond the threat
itself—was sustained, not momentary, fleeting, or transitory.
Second, Johnson argues there is evidence that Cross called 911 because
he feared for others’ safety, not his own as required by section 422. To be
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sure, Cross testified at one point that he called 911 “[b]ecause [he] was
threatened and there’s a school very close to the village and school kids
cruise through that village all the time. Also, mothers like to walk through
the village with their babies and in their little baby carts.” During his 911
call Cross similarly stated that he called “because [he] was afraid [Johnson]
was – [Johnson] was either gonna hurt [him], or [Johnson] was gonna hurt
somebody else.” These statements plainly indicate that Cross was afraid for
others’ safety in addition to his own.
Third, Johnson emphasizes the fact that Cross’s tone of voice during
the 911 call was calm and matter of fact. We have listened to a recording of
the call and acknowledge that Cross communicated to the operator calmly
and clearly. At the same time, using that tone of voice, Cross explicitly
stated he was afraid that Johnson was going to hurt him. In our view, the
only rational interpretation of the call is that Cross was able to maintain a
steady tone while afraid, not that he was not afraid.
In sum, there was no discernable evidence that Cross’s fear was
anything less than sustained. The trial court therefore did not err in failing
to instruct the jury sua sponte on an attempted criminal threat.
B. Excess Credits
Johnson also claims the trial court erred by failing to apply his excess
presentence custody credits to his parole period. He asks us to direct the trial
court to deduct 526 days—the 1,621 days of credit he earned minus the 1,095
days required to satisfy his three-year prison term—from his parole period.
It is true that any excess presentence custody credits that a defendant
accrues must be applied to his parole period. (People v. Morales (2016) 63
Cal.4th 399, 405, citing § 2900.5, subds. (a) & (c).) But there is no error here
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because it is the Department of Corrections and Rehabilitation and the Board
of Parole Hearings that determine when a defendant is discharged from
parole, and any excess credits are taken into account. (See §§ 3000, subd. (b)
& 3001; Cal. Code Regs., tit. 15, §§ 2515, 2345, 2535–2537.) In an abundance
of caution, we will direct the trial court to amend the abstract of judgment to
note that Johnson’s excess credits shall be applied to his parole period.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare and
send a certified copy of an amended abstract of judgment to the Department
of Corrections and Rehabilitation, noting that Johnson’s 526 days of excess
presentence custody credit are to be applied to his parole period.
DATO, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
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